EXHIBIT 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VIASYSTEMS, INC.
The undersigned duly authorized officer of Viasystems, Inc., a Delaware
corporation, hereby certifies the following:
1. The name of the corporation is Viasystems, Inc. (the
"Corporation"). The date of filing of the original Certificate of Incorporation
of the Corporation (the "Certificate of Incorporation") with the Secretary of
State of the State of Delaware was April 2, 1997.
2. This Amended and Restated Certificate of Incorporation
restates and integrates and amends the Certificate of Incorporation, to give
effect to the Corporation's Plan of Reorganization under chapter 11 of title 11
of the United States Code (the "Bankruptcy Code") pursuant the confirmation
order, dated January 14, 2003, of the United States Bankruptcy Court for the
Southern District of New York and Sections 242, 245 and 303 of the General
Corporation Law of the State of Delaware (the "DGCL"), as applicable.
3. The Certificate of Incorporation, as amended and restated
hereby, shall upon its filing with the Secretary of State of the State of
Delaware, read in its entirety as follows:
FIRST: The name of the Corporation is Viasystems, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any and all lawful acts and activity for which corporations may be organized
under the DGCL. The Corporation will have perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares designated as common stock, par value
$.01 per share. Notwithstanding anything to the contrary herein, the Corporation
shall not issue nonvoting equity securities; provided, such prohibition on the
issuance of nonvoting securities shall have no force and effect except to the
extent and for so long as section 1123 of the Bankruptcy Code is applicable to
the Corporation.
FIFTH: The number of directors constituting the entire Board of
Directors of the Corporation shall be fixed by, or in the manner provided in,
the Bylaws of the Corporation.
SIXTH: Directors of the Corporation need not be elected by written
ballot.
SEVENTH: The directors of the Corporation shall have the power to
adopt, amend, and repeal the bylaws of the Corporation.
EIGHTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation and
any person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her, or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved, or ratified by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article Ninth is in effect.
Any repeal or amendment of this Article Ninth shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article Ninth. Such right shall include the
right to be paid by the Corporation expenses incurred in investigating or
defending any such proceeding in advance of its final disposition to the maximum
extent permitted under the DGCL, as the same exists or may hereafter be amended.
If a claim for indemnification or advancement of expenses hereunder is not paid
in full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such
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indemnification or advancement of costs of defense are not permitted under the
DGCL or other applicable law, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to have made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators, and personal representatives. The rights conferred above shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, by-law, resolution of stockholders or directors,
agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation and such other persons as may be permitted under the DGCL to the
fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or amendment of this Article Tenth by the stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation arising from an act or
omission occurring prior to the time of such repeal or amendment. In addition to
the circumstances in which a director of the Corporation is not personally
liable as set forth in the foregoing provisions of this Article Tenth, a
director shall not be liable to the Corporation or its stockholders to the
fullest extent as permitted by any law existing on the date hereof or hereafter
enacted, including without limitation any subsequent amendment to the DGCL.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed pursuant to Section 103(a)(2)
of the DGCL by the undersigned duly authorized officer of the Corporation as of
January 31, 2003.
/s/ David J. Webster
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David J. Webster
Senior Vice President and Secretary